A Buffalo woman contends in a lawsuit that a Buffalo Municipal Housing Authority officer forced her eye open with his thumb and then sprayed her eye with pepper spray, scratching her cornea in the process.
Medical records will verify that Brenda Dennis, 37, suffered eye injuries after the incident outside her home at the Commodore Perry housing project in the summer of 1996, her attorney said Monday.
Ms. Dennis said police already had her hands cuffed behind her back when an officer forced her left eyelid open and sprayed the noxious substance into the eye on July 19, 1996. Criminal charges filed against Ms. Dennis that day were dismissed, but her police-brutality lawsuit is still pending in State Supreme Court.
Civil rights attorneys said Ms. Dennis' lawsuit is one of dozens alleging abuses of pepper spray by officers from the Buffalo police and other local agencies. The U.S. Justice Department announced last week that it has begun a "non-criminal investigation" into the use of pepper spray in the Buffalo Police Department. Some lawyers want the probe expanded to other area departments. But, according to the Buffalo police union and the city's chief attorney, the use of pepper spray actually has cut down on the use of physical force by police.
"I can't quantify it for you, but we're definitely seeing less cases where injuries were sustained, and I think pepper spray is a major reason," acting Corporation Counsel Michael Risman said. "Officers are using pepper spray in situations where they might have used a nightstick or a flashlight in the past."
Police union leaders said they are seeing fewer incidents because of the pepper spray.
"Can I swear? I think the federal investigation is bull----," said Inspector William Misztal, a 30-year police officer who is the treasurer of the Buffalo Police Benevolent Association. "Pepper spray has greatly reduced the number of injuries, not only to police officers, but to people we arrest. It gives you an option where you can immobilize somebody, put cuffs on them, without injuring them. I've never seen it misused by anyone in this department."
While saying exact statistics were unavailable, Risman said the number of complaints filed by people who are injured by police has gone down steadily since the Buffalo department began using pepper spray.
Risman said citizens file an average of 20 to 25 lawsuits against the city each year for false arrest or police brutality.
"I've had officers tell me they were able to stop a barroom brawl, and clear out the whole bar, by spraying pepper spray over the heads of the combatants," Risman said.
While pepper spray may cause severe discomfort and difficulty in breathing, Risman said he has never heard of any incident in Buffalo where the spray has caused permanent injury.
Ms. Dennis' attorney, however, said he plans to tell FBI agents about the incident to convince them that their investigation into pepper spray use should be expanded to other area departments. David G. Jay's comments were echoed by Glenn E. Murray, a Buffalo lawyer who has filed several such lawsuits.
"I think they should be looking at every department in the area that uses these sprays," Jay said. "There have been abuses in other departments, and they ought to be looked into. This is a serious problem."
But Jay and Murray, two of the city's busiest civil rights attorneys, see the issue differently.
When pepper spray is used properly, it probably does prevent injuries, Murray said.
"But some officers use pepper spray, or refuse to let people wash their eyes out with water, when they feel a suspect is being uncooperative," Murray said. "A suspect who complains that his handcuffs are hurting his wrists, or a suspect who questions an officer's conduct risks being brutalized with pepper spray."
In Ms. Dennis' case, it is alleged that a Housing Authority officer arrested her, held her eye open and sprayed directly onto her eyeball because he did not like some remarks the woman was making, Jay said.
"She said her niece had been in an altercation with another girl. Ms. Dennis told the officers she had nothing to do with the altercation. An argument ensued, and Ms. Dennis wound up calling the officers some names," Jay said. "They pulled her out of her house, cuffed her and sprayed her. She said the officer yanked the pepper spray nozzle right across her eyeball after spraying her."
Housing Authority police have denied wrongdoing in the case.
"I can't comment on the incident because it is in litigation, but we train our people to be careful and cautious in their use of pepper spray," said Chief Ronald J. Christopher of the Housing Authority police. "This is the only charge of abuse that I'm aware of since we started using the spray several years ago."
Police charged Ms. Dennis with disorderly conduct, obstructing governmental administration, resisting arrest and assault, but all those charges were dismissed in City Court, Jay said.
Jay and Murray said they are aware of other recent lawsuits involving alleged abuses of pepper spray:
A state lawsuit last year claimed that Buffalo police sprayed two 13-year-old girls in their faces to break up a fight on the West Side that involved no weapons. The city paid a $1,100 settlement, with no admission of wrongdoing, rather than go to trial on police-brutality allegations.
The city paid $2,000 -- again, with no admission of wrongdoing -- to settle a lawsuit filed last year by two Derby men who claimed officers sprayed them in the face because they questioned their handling of a drunken man.
A pending suit claims Buffalo officers improperly pepper-sprayed citizen activist Loretta Renford -- putting her in the hospital for nine days -- while she was observing them making an arrest in her East Side neighborhood.
"I have eight or nine other cases, in various stages, involving pepper spray," Jay said. "And I wonder how many other people don't make complaints."
Jay added that he is glad the Justice Department is investigating Buffalo officers' use of the spray, but he wonders how effective the investigation will be.
"An FBI agent called me about eight months ago and asked me if I had any cases on illegal use of pepper spray. I said, 'I sure do, come over and look at this stuff,' " Jay said. "My office is literally 100 yards from the FBI building, but the agent still hasn't come over.
"I also have concerns about them calling this a 'non-criminal investigation.' It's almost like they've already concluded that there was no criminal activity by the Buffalo police. What happens if they come up with proof of criminal activity when they do this?"
Interim U.S. Attorney Denise E. O'Donnell said the probe is a non-criminal civil rights investigation that is designed to find out whether there are problems with Buffalo police procedures on pepper spray use. Mrs. O'Donnell declined to speculate on what will happen if investigators learn of criminal activity in this particular investigation.
"But speaking generally, if we're conducting a non-criminal investigation and we come up with information about a crime, we would refer it for a criminal investigation," the prosecutor said. "It has happened before in the health care field."